004-SLLR-SLLR-2002-V-1-BASHEER-SEGU-DAWOOD-v.-FERIAL-ASHRAFF-AND-OTHERS.pdf

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Basheer Segu Dawood v. Ferial Ashraff and Others
(Amerasinghe, J.)
29
Provided that, in the case of the expulsion of a Member ofParliament his seat shall not become vacant if prior to the expirationof the said period of one month he applies to the Supreme Courtby petition in writing, and the Supreme Court upon such applicationdetermines that such expulsion was invalid. Such petition shall beinquired into by three Judges of the Supreme Court who shall make 40their determination within two months of the filing of such petition.Where the Supreme Court determines that the expulsion was vaildthe vacancy shall occur from the date of such determination".
The petitioner came to be a Member of Parliament in the followingway:
The Secretary-General of the Sri Lanka Muslim Congress (SLMC),on the 13th of October, 2000, wrote to the Secretary-General ofNational Unity Alliance (NUA) stating as follows: (P25B).
"This is further to our discussion on the need to recommenda name to the Commissioner of Elections for the National List of sothe National Unity Alliance.
Please take action to recommend the name of Mr. Basheer SeguDawood, the National Propaganda Secretary of the Party to theCommissioner of Elections to be appointed as a MP on the NationalList of the NUA.
This communication is sent to you in terms of the Memorandumof Understanding signed between the SLMC and the NUA dated31. 08. 2000."
The Secretary-General of the NUA on the 13th of October, 2000,accordingly wrote to the Commissioner of Elections (P25C).60
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Sri Lanka Law Reports
[2002] 1 Sri L.R.
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The National Unity Alliance was, in the words of the Memorandumof Understanding dated the 10th of June, 1999 (P4), "a new politicalalliance", that brought together two recognized political parties for thepurposes of elections, namely, the Sri Lanka Muslim Congress andthe Sri Lanka Progressive Front. The National Unity Alliance itselfbecame a recognized political party for the purposes of elections within 70the meaning of section 7 of the Parliamentary Elections Act, No. 1of 1981.
The Constitution of the National Unity Alliance states (P5a) thatthe members of the National Unity Alliance are –
The Sri Lanka Muslim Congress, and
The Sri Lanka Progressive Front.
However, the Constitution of the NUA provides that the politburoof the NUA "by a unanimous decision may decide to admit any otherpolitical party into the alliance".
The structure known as the NUA had constituent parts consisting soof political parties, but it did not accommodate individuals as members.
The petitioner contends that neither he, nor for that matter anyother individual, was a member of the NUA, for the NUA Constitutiondid not provide for any members other than political parties. Individualscould not become members of the NUA. The petitioner contends thatinasmuch as he was not a member of the NUA, the 1st respondent'spurported expulsion of the petitioner from the NUA was a nullity. Thepetitioner further contends that in any event the purported expulsionwas invalid in terms of the Constitution of the National Unity Alliance(P5a).90

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Basheer Segu Dawood v. Ferial Ashraff and Others
(Amerasinghe, J.)
31
Mr. Jayamanne, PC and Mr. Rajapakse, PC contended that, if asthe petitioner maintains, he was not a member of the NUA, then heis precluded from invoking the jurisdiction of this Court under and interms of Article 99 (13) (a) of the Constitution, for a person invokingthe jurisdiction of this Court under that Article should have ceasedby resignation, expulsion or otherwise to be a member of a recognizedpolitical party … on whose nomination paper… his name appearedat the time of his becoming such Member of Parliament . . ." Thesubmission of learned counsel, attractive though it appears at firstsight, is in my view flawed, for it rests on the erroneous assumption toothat a Member of Parliament must be a member of a recognizedpolitical party.
Where there is a purported expulsion of a Member of Parliamentsuch Member is entitled, under Article 99 (13) (a) of the Constitution,to invoke the jurisdiction of this Court to determine whether suchexpulsion was valid. In order to invoke the jurisdiction of this Court,a petitioner is not required to establish that he was a member of arecognized political party on whose nomination paper his name appearedat the time of becoming such Member of Parliament. Members ofParliament who are 'elected' are candidates whose names appear on 110the nomination papers of recognized political parties. There is norequirement that such candidates shall also be members of suchparties. The petitioner, as we have seen was declared 'elected' underand in terms of Article 99A of the Constitution. There is no requirementin that Article for a nominee of a recognized political party, to fill aseat due to such political party under an apportionment, to be amember of that political party. Neither the provisions of the Constitutionnor the provisions of the Parliamentary Elections Act require a personto be a member of a political party to be eligible to be nominatedas a candidate for election to Parliament. Of course, political parties 120and alliances of political parties may have members who can beexpelled. In fact, the new Constitution of the NUA does provide for"Founder Members", namely, the SLMC and the SLPF and individuals.
But, as far as the petitioner is concerned he was and remains amember of one political party, namely, the SLMC, and that party alonealthough he was a candidate nominated by the NUA for election toParliament in terms of Article 99A of the Constitution.
32
Sri Lanka Law Reports
[2002] 1 Sri L.R.
As we have seen, the first respondent in her letter (P19) has statedthat as the petitioner represents the NUA in Parliament his “dismissalfrom membership of the NUA" (sic) and his "expulsion from the Party" i»>will be communicated to the Secretary-General of Parliament and theCommissioner of Elections.
Whatever the petitioner or anyone else may have thought aboutthe matter, the petitioner's seat in Parliament would have automaticallyfallen vacant upon expiration of one month from the purportedexpulsion from the party and the Secretary-General of Parliamentwould have informed the Commissioner of Elections who would thenhave taken steps to fill the vacancy. (See Article 99 (13) (a)of the Constitution and section 64 (1) of the Parliamentary ElectionsAct, No. 1 of 1981). However, the Constitution states that in the case 140of expulsion of a Member of Parliament his seat would not becomevacant if prior to the expiration of one month from the expulsion heapplies to the Supreme Court and the Court upon such applicationdetermines that such expulsion was invalid.
The petitioner, not being a member of the NUA could not beexpelled from it. I, therefore, hold that the purported expulsion of thepetitioner, Mr. Basheer Segu Dawood, was invalid since it was nulland void and of no force or avail in law; the purported expulsion bythe first respondent is of no value or importance: It amounts tonothing and shall be treated as non-existent for the purposes of 150Article 99 (13) (a) of the Constitution.
The 1st respondent shall pay the petitioner a sum of Rs. 25,000as costs.
WADUGODAPITIYA, J. – I agree.
GUNASEKERA, J. – I agree.
Expulsion of the petitioner from the party determined invalid.